ARIZONA STATE SENATE
Fifty-Fifth Legislature, Second Regular Session
organ transplants; disabilities; discrimination; prohibition
Purpose
Prohibits health care providers from refusing to provide or otherwise determining that an individual is ineligible to receive organ transplant-related services based solely on the fact that the individual has a disability. Requires health care facilities to make reasonable policy modifications to allow individuals with a disability access to organ transplant-related services.
Background
Current statute authorizes anatomical gifts to be given during the life of a donor for purposes of transplantation, therapy, research or education by the donor, the donor's agent, a minor donor's parents or the donor's guardian. The anatomical gift may be given through the state donor registry, in a will, through communication between two or more adults during a terminal illness or injury of the donor or by a donor card. In the event of a donor's death, an anatomical gift may be given by any of the following, in order of priority: 1) the decedent's agent; 2) the decedent's spouse; 3) the decedent's adult children; 4) the decedent's parents; 5) the decedent's domestic partner, if unmarried; 6) the decedent's adult siblings; 7) the decedent's adult grandchildren; 8) the decedent's grandparents; 9) an adult who exhibited special care and concern for the decedent; 10) the persons acting as the guardians of the person decedent at the time of death; and 11) any other person who has authority to dispose of the decedent's body (A.R.S. 36-843; 36-844; and 36-848).
Anatomical gifts may be awarded to: 1) an organ procurement organization; 2) a hospital, accredited medical school, dental school, college, university, procurement organization or other person for research or education; 3) an individual designated by the person awarding the anatomical gift; or 4) an eye or tissue bank (A.R.S. 36-850).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Organ Transplant Disability Discrimination
1. Prohibits a health care provider, solely on the basis of an individual's disability, from:
a) determining that the individual is ineligible to receive an organ transplant;
b) denying the individual medical or other services related to an organ transplant, including evaluation, surgery, counseling and postoperative treatment;
c) refusing to refer the individual to a transplant hospital or other related specialist;
d) refusing to place the individual on an organ transplant waiting list;
e) placing the individual at a lower priority position on the transplant waiting list; or
f) declining insurance coverage for the individual for any organ transplant procedure or related service.
2. Permits a health care provider to consider an individual's disability when making a treatment recommendation or decision solely on the determination of a physician that the disability is medically significant to the organ transplant.
3. Prohibits a health care provider from considering an individual's inability to independently comply with posttransplant medical requirements as a medically significant reason to deny organ transplant if the individual has a known disability and the necessary support system to assist in compliance.
4. Requires health care facilities to make reasonable policy modifications to allow individuals with a disability access to organ transplant-related services, unless the facility can demonstrate that making the modifications would fundamentally alter the nature of the services or would impose an undue hardship on the facility.
5. Specifies that reasonable modifications of a health care facility's policies and procedures includes:
a) communicating with persons supporting or assisting with the individual's postsurgical and posttransplant care; or
b) considering the support available to the individual with posttransplant medical requirements, including support by family, friends or home and community-based services.
6. Requires health care providers to make reasonable efforts to:
a) comply with health care facility policy and procedure modifications necessary to allow an individual with a disability access to organ transplant services, unless the provider can demonstrate that compliance would fundamentally alter the nature of the services or impose an undue hardship on the provider; and
b) provide auxiliary aids and services to an individual with a known disability that is seeking organ transplant services, as necessary, unless the provider can demonstrate that providing the services would fundamentally alter the nature of the services or impose an undue hardship on the provider.
7. Requires health care providers to comply with the Americans with Disabilities Act (ADA) to the extent that it applies to the health care provider, unless compliance is not required.
8. Applies the disability discrimination prohibition to each stage of the organ transplant process, including evaluation, counseling, treatment, providing information and any other service recommended or required by a physician.
9. Specifies that a violation of the disability discrimination prohibition is grounds for disciplinary action by the applicable regulatory board.
10. Requires a regulatory board that takes disciplinary action against a provider for violations of the disability discrimination prohibition to:
a) notify the health care provider of the board's finding that the provider committed a violation; and
b) provide the health care provider with an opportunity to correct the violation without penalty or reprimand.
11. Specifies that the following individuals are not in violation of disability discrimination prohibition:
a) a physician who, in good faith, determines an individual's disability is medically significant to an organ transplant; and
b) a health care provider who, in good faith, makes a treatment recommendation or decision on the basis of a physician's determination that an individual's disability is medically significant to an organ transplant.
Civil Action
12. Permits an individual that believes a health care facility or provider has violated the disability discrimination prohibition to commence civil action for injunctive and other equitable relief.
13. Allows the action to be brought in the superior court in the county where the affected individual resides, resided or was denied organ transplant or referral.
14. Requires the court to give the action priority on its docket as well as expedited review.
15. Permits the court, in granting injunctive or equitable relief, to require:
a) auxiliary aids or services be made available to qualified recipients;
b) the modification of a health care facility or provider policy, practice or procedure; or
c) that health care facilities be made readily accessible and usable by a qualified recipient.
16. Specifies that civil action for violations of the disability discrimination prohibition do not limit or replace available remedies under the ADA, nor does it create a right to compensatory or punitive damages against a health care provider or facility.
Miscellaneous
17. Defines auxiliary aids and services, disability, health care facility and health care provider.
18. Makes technical and conforming changes.
19. Becomes effective on the general effective date.
House Action
HHS 2/14/22 DP 9-0-0-0
3rd Read 2/23/22 59-0-1
Prepared by Senate Research
February 28, 2022
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